Plaintiff's Attorney Geoffrey Reese, ProSe.
Defendant's Attorney Jim Fortin, AAG.
WILLIAM R. STOKES JUSTICE.
matter before the court is an appeal by Geoffrey Reese, an
inmate at the Maine State Prison, from the Commissioner's
denial of his grievance that upheld the refusal to allow him
to possess, within the prison, a single photograph that
appears to depict a woman in a nightclub or bar holding an
alcoholic beverage. This appeal has been brought in
accordance with 5 M.R.S. §§11001-11008
(Administrative Procedure Act) and M.R.Civ, P. 80C.
AND PROCEDURAL BACKGROUND
October 24, 2017, Reese was notified in writing that a piece
of mail addressed to him from T. Soloman and consisting
of" 1 personal photo" was not being forwarded to
him because it "depicts or describes the use or
manufacture of. . . alcoholic substances . . . ."
(Administrative Record, hereinafter A.R. at 2). On
October 30, 2017, Reese utilized the Prisoner Grievance
Procedure to complain that the photograph should not have
been withheld from him because: (1) it was merely an
assumption that the beverage in the photograph was alcoholic,
and; (2) the mail policy prohibiting material that depicts
alcohol is invalid. A.R. at 1. Informal resolution
of the grievance was unsuccessful, with the prison staff
member stating: "Picture is taken in a bar setting of
more likely than not a mixed drink." Id.
pursued appeals at all levels of the grievance process, and
at all levels his grievance was denied including the final
denial by the Commissioner on January 16, 2018. (A.R. at
7). On February 16, 2018, Reese filed a Petition for
Judicial Review. On May 7, 2018, he sent a letter addressed
to the clerk of this court and enclosed what appears to be
the original of an MDOC "Prisoner Property Contraband
Disposition Form" dated October 24, 2017. The form
described the contraband article as "1 personal photo -
Not Allowed - Alcohol." Stapled to this form was the
original of the photograph in question. The photograph
depicts a man (who the court presumes is Mr. Reese) with his
arms around two women on either side of him. The woman on his
left (to the right of the photo) is holding, in her left
hand, a cell phone and a beverage in a glass with a black
straw. The setting of the photograph appears to be a
nightclub or bar.
letter to the Clerk, Reese explained that he was not allowed
to possess the photograph and MDOC would not maintain custody
of it, so he decided to send it to the court so that it could
be included with the administrative record on
appeal.Subsequently, Reese filed a number of
procedural motions, including a motion to amend his
petition/complaint. The court denied that motion on October
Department of Corrections has adopted a policy governing
prisoner communication, including the receipt of mail from
outside the prison. See Policy No. 21.2 (2-29-2016
revision). Section VI, Procedure E (2) addresses the
subject of prohibited materials. Procedure E (2)(d) provides:
Publications and other materials, including correspondence,
sent to prisoners are prohibited if they contain any of the
following: d. material that depicts or describes the use or
manufacture of drugs, alcoholic substances, firearms,
explosives, or other weapons, keys or other security devices,
or skills, implements, or other information which could
reasonably be used to effect escape or cause harm or injury
to persons or property.
noted above, at the informal resolution stage of the
grievance procedure the property manager/media review officer
(Gary Waltz) relied upon the policy quoted above to withhold
the photograph from the Petitioner. Reese argued that it was
merely an assumption that the beverage held by the woman in
the photo was alcoholic. Moreover, he claimed that alcohol is
a legal substance outside the prison and, therefore,
photographic images of something that is legal to possess and
consume should not be prohibited inside the prison. (A.R.
at 1). The property manager disagreed and found that the
photo was taken at a bar or similar venue, and it was more
likely than not that the beverage was alcoholic. Id.
The grievance review officer at Level I agreed that the photo
"depicted alcoholic beverages, and by MDOC policy they
are not allowed." (A.R. at 3).
Court has frequently reaffirmed the principle that judicial
review of administrative agency decisions is
"deferential and limited." Passadumkeag
Mountain Friends v. Bd. of Envtl. Prot.,2014 ME 116,
¶ 12, 102 A.3d 1181 (quoting Friends of Lincoln
Lakes v. Bd. of Envtl. Prot.,2010 ME 18, ¶ 12, 989
A.2d 1128). The court is not permitted to overturn an
agency's decision "unless it: violates the
Constitution or statutes; exceeds the agency's authority;
is procedurally unlawful; is arbitrary or capricious;
constitutes an abuse of discretion; is affected by bias or
error of law; or is unsupported by the evidence in the
record." Kroger v Departmental of Environmental
Protection.2005 ME. 50, ¶ 7, 870 A.2d 566. The
party seeking to vacate a state agency decision has the
burden of persuasion on appeal. Anderson v Maine Public
Employees Retirement System.2009 ME. 134, JJ 3, 985
A.2d 501. In particular, a party seeking to overturn an
agency's decision bears the burden of showing that
"no competent evidence" supports it. Stein v.
Me. Crim. Justice Academy,2014 ME 82, ¶ H, 95 A.3d
612. Judicial review of an administrative agency's
interpretation of its ...